Posted on 05/23/2013 7:22:56 AM PDT by billorites
Lois Lerner, the IRS official in charge of tax-exempt groups, took her too-clever-by-half act to Congress yesterday and may have waived her right to claim her Fifth Amendment privilege in the process. Appearing before the House Oversight and Government Reform Committee, she couldn’t resist citing a little history, bragging on her public service, instructing the committee as to the purpose of the Fifth Amendment, and proclaiming her innocence of everything the committee might be interested in — all before asserting her Fifth Amendment privilege.
Chairman Darrell Issa (R., Calif.) was a bit taken aback. He had never seen anybody try that before. Neither had I. Witnesses and lawyers know, or should know, that you can’t selectively invoke the Fifth Amendment — that is, partially testify. That is why, if a decision is made to take the Fifth, a lawyer will instruct his client to invoke it after almost every question, after identity is established, out of an abundance of caution. You don’t want your client to unintentionally waive the privilege.
he reason for the “selectivity” rule is to prevent the distortion of the record or the perversion of justice. What if a witness testified as to his side of the story and then took the Fifth on cross-examination? No fair. So now Issa is planning to call her back and take the position that she waived the privilege and must testify or, presumably, face contempt charges. So did she waive the privilege? As you might expect, the matter is not quite as simple as it appears.
As best I can remember, there is no case on point involving a congressional hearing. Although court cases, both criminal and civil, are applicable, though somewhat different standards are applied, the general rule as to waiver is as I’ve stated. Even in the court decisions, however, there is probably no case on point. As I stated, people simply don’t usually get themselves in this position. Also, the cases are very fact-specific.
No two cases are alike. However, in light of the purpose of the waiver rule, I think Ms. Lerner has a real problem. And it’s not just because of the statement she made yesterday. Apparently, Ms. Lerner made statements to the committee or committee staff before yesterday, either in person, answering written questions, or both, regarding the committee’s IRS-targeting investigation. The courts have held that a person can be deemed to have waived the privilege in prior testimony if the testimony was part of the “same proceeding.” Seems pretty clear that it was: For example, one court has held that grand-jury testimony was part of the same proceeding as the subsequent trial. So if, in prior testimony, she revealed an incriminating fact, the privilege cannot be invoked to avoid discussion of the details.
Then add the fact that Issa got her to verify at least some of her prior written statements yesterday, and supplement that with her statement as to her innocence, etc., and one must conclude that she may pay dearly for her little moment of indulgence. It was about as clever as planting a question in an out-of-the-way conference on a Friday afternoon in order to have the scandal dribble out mainly unnoticed. It may well get the same results.
He’s been on vacation. I think he’s back tonight.
I concur. What struck me in watching/listening was that Chairman Issa sounded like anything but a babe in the woods in the exchange with Lerner. He was making lawyer-like noises, and I seriously doubt that Lerner’s lawyer was lighting up a cigar while listening to to him. It didn’t sound at all to me like anything Gowdy (sp?) said came as a surprise to Issa.
I think I heard it was Ike's. Could be wrong.Is EO 10491 an Obama EO?
55 posted on 05/23/2013 12:18:12 PM PDT by houeto
If it’s not an Obama EO, I’d bet a whole case of lager that he won’t enforce it. - MortManIt was signed by Eisenhower back in ’53, and although you are undoubtedly correct that she is covering for Obama, if she is not terminated, contrary to a standing EO and common sense, that will be an obvious scandal in its own right.I’m put in mind of “Who hired Craig Livingstone?” Imagine if the question is asked whether the EO has been executed in this case - who is going to stand up and say, I knew about the EO and I decided not to terminate Ms. Lerner.” Is Obama actually going to stand up and overturn the EO, actually taking responsibility for, in effect, rehiring Lerner?
Surprise, surprise!
I'm inclined to that interpretation, as well.
According to Issa afterward, her lawyer had advised him that a.) she would invoke the 5A and b.) she would not be making a statement.
I suspect Lerner chose to disregard her lawyer's professional advice so that she could tell the world (and those contemptible Republicans) how important and how innocent she was.
In other words, her attorney had an incompetent client.
Newsmax
Rand Paul: Would Have Suspended Lerner Without Pay
Thursday, May 23, 2013 11:41 PM
Sen. Rand Paul on Thursday called the decision by the embattled IRS to replace Lois Lerner over the agency’s targeting scandal “a beginning” but that “I would have suspended her without pay.”
“We have to watch very closely, because what they tend to do is they transfer people around and change their titles,” the Kentucky Republican told Fox News’ Eric Bolling on the “Hannity” program.
Lerner, who oversees tax-exempt organizations for the IRS, was placed on paid administrative leave. She refused to answer questions on Wednesday at a hearing of the House Oversight and Government Reform Committee.
She invoked her constitutional right against self-incrimination after giving a statement in which she denied wrongdoing.
Paul cited the four State Department officials who were supposed to lose their jobs over the attacks in Benghazi that killed U.S. Ambassador Christopher Stevens and three other Americans last Sept. 11.
“I know that within the State Department, the four people he said he was going to fire are still there,” Paul said. “We called them this week and they still all have phones at the State Department.
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